The Los Angeles Times from Los Angeles, California • 15

EoflAnfleteflGfonca 2 juiy 29, 1979-Part II 5 Diverse Personalities Make Up the California Supreme Court Mathew 0. Tobriner: An Activist Judge With a National Reputation I Wiley W. Manuel: Playing It Straight and Safe and Diligent BY NANCY SKELTON TlmM Stiff WrHtr HAGER Wrttr I weren't there. It just meant you don't; go running off to Mississippi to register voters when you're up on top. Wiley made his contribution." When The Times asked court experts to rank the ability of the current justices half placed Manuel in fourth place, half in fifth.

"He's a technician more than an architect of great thinking," said a member of the State Bar board of governors, Joseph P. Hurley of North Hollywood. "If you can make the rocket, he can make the launching pad." Bernard Witkin, the legal, author, said Manuel "was catapulted into this job without any background what-, soever, coping with subjects he hasn't heard of since law school." But a 20-year colleague of Manuel at the attorney general's office counters that his friend often studied areas such as property law that "he really didn't need in his job." Author Witkin said Manuel, thus far, has shied away from social reform on the court Yet another longtime colleague from attorney general office days, Asher Rubin, says Manuel often argued for state recruitment of minority lawyers, sometimes over the objections of others. A veteran Los Angeles appellate lawyer said he has spotted something curious" about seven Manuel opinions he picked at random the other day. "In all seven, he wrote for a unanimous court," the lawyer said.

"That could cut two ways-either he's been able to sway all six justices to his position, or maybe Manuel is selected to write only when there is BY PHILIP TkMt Stiff The lawyer, himself a former Judge, recalled how startled he had been to see Justice Mathew 0. Tobriner undergo four days of intensive, sometimes accusatory questioning before the state Judicial Performance Commission. "I hate to see a person of that stature ending up as a witness," the lawyer said. "For those of us in the profession, it's like a doctor being operated on. You don't act quite the same as a patient when you've been a surgeon.

For Tobriner, at age 75 the senior justice, with 17 years' experience on the state Supreme Court, it was indeed ironic and by his own account a "tragedy" in an otherwise unblemished career. Repeatedly, he denied he had withheld controversial court decisions until after the election to help insure voter confirmation of Chief Justice Rose Bird. "I hardly even talked to her about it," he said emphatically. Whatever the future holds for Tobriner, he has already established himself as one of the best-known state supreme court justices in the nation-outspokenly liberal and activist in his interpretations of the law, a judge whose opinions are laced with rhetoric and imagery. He believes, as he has often stated, that judges must accommodate the law to an ever-changing society.

"If that's why I am called a liberal," he once told a questioner, "then I'm proud." Tobriner was the lone dissenter on the court when in 1976 it upheld Allan Bakke's claim that he was unfairly denied admission to the UC Davis Medical School because he was white. To Tobriner, the racial classifications the school used to insure minorities made up a fixed 16 quota of admissions were not "invidious" but rather were thus constitutionally acceptable. More recently, Tobriner wrote the court's majority opinion in a decision declaring that privately owned public William P. Clark Range from Rigid Ask 20 people about Wiley William Manuel and you will get 20 responses of "scholar' "hard-working," "good family man," "religious," "apolitical" and "intellectually honest" and only a rare "tough" or "stubborn." You will hear that he is a 52-year-old black American dream man who! played it straight and safe and dil-' igent and won. Many say he is playing it straight down the middle on the court as well, and as a result, court history will not give him a niche.

"He's Brown's Whizzer White," California Judicial Nominees Evaluation Commission chief Edward Las-cher said, referring to President John1 F. Kennedy's appointment of liberal-turned-conservative Byron White to the U.S. Supreme Court. "He's sound," another California' legal figure said. "He's pretty much what would be expected from a man with a background in the attorney general's office." But Manuel came from another kind of place, as well-born across the bay from the court's chambers at a time when not only were blacks not being named judges, but there were no black law firms, almost no black government lawyers and only a handful of any kind of black lawyers in town.

His father was a dining-car waiter on the Southern Pacific, and his mother, like her husband, had come from New Orleans, seeking the better life. They soon moved their son out of a downtown Oakland flat and into a tree-lined neighborhood in Berkeley, a bike ride away from Berkeley High and the University of California. "Good old-fashioned black parents made it plain in those days: 'You're starting two steps behind, you have to get two steps ahead, so get busy and San Francisco Court of Appeal Justice Clinton White said. "I heard it, I'm sure Wiley did." Sometimes, Manuel's friends say, he will talk about how they suggested he take shop courses at Berkeley High so he would get a better job after graduation. But Manuel was "a bright young black," White said, "and in those days, bright young blacks were encouraged to go three ways-schoolteacher, doctor or lawyer.

So while many of his black colleagues were battling civil-rights cases during the 1950s and '60s, "Wiley was busy becoming one of the state's top lawyers," White said. "It didn't mean his sympathies: Wiley William Manuel no controversy." Of note is the fact that Manuel dissented in the "use a gun, go to prison" Tanner I decision, leaning toward the legislatively mandated pro-law enforcement side. Manuel still car-pools across the bay each day with his old pals from the attorney general's office, and brown-bags with them at lunch. Sometimes, his friends say, he grouses about how he never got an athletic letter at Berkeley High because he only got to substitute at second base behind Billy Martin who went on to become New York Yankees manager. Now, at Berkeley High, they remember Billy Martin went there, but look blank if you ask about Wiley Manuel.

And sometimes, friends say, he grouses about how the press insists on identifying him as the court's "black member." "Why do they do that?" Manuel MOTION PICTURE THEATRE GUIDE tttt 7730 6lnitf UmnnMMar 7MMM-M04 UTILE MMMXINI "PZTJAL EEACH fMICMM Ml WfrU BM Uum 2 17D CoranKto Hot. KOTMLU 7M3-2727 KMBCMMI! HTM is! 6 BIN Murray 2 170 Coram) Aw. TMnMMUl 7MM23-2727 WTLM JOKY MLB Classical Country Jazz Rock Pop SAMCSSOCtTYl LAJSLLA 16 15 knpiriil Avf. CHrtltwXxr Rwvt wrtMuirtj ML KM lit) utilities may not deny jobs to applicants because they are homosexual. Like the civil-rights movement for racial minorities, the "struggle for homosexual rights" must be recognized as political activity protected by the law, Tobriner declared.

Last March, decrying "bleak materialism," Tobriner, writing the majority opinion upholding a city ordinance restricting commercial billboards, was moved to quote the words of OgdenNashi think that I shall never see A billboard lovely as a tree. Indeed unless the billboards fall FU never see a tree at all. Throughout his career, Tobriner has been at the forefront of a court that has set national precedents in everything from extending new rights for criminal defendants to restructuring the way school systems are financed. His political stance has won acclaim from liberals, and his carefully written opinions have won praise from scholars. Gordon Schaber, dean of the University of the Pacific McGeorge School of Law, called Tobriner (along with Justice Stanley Mosk) one of the most "strong and capable" justices in the country.

Robert L. Gnaizda, a veteran legal-services lawyer now associated with Public Advocates in San Francisco, said flatly that Tobriner is the "preeminent justice in the land-including the justices of the U.S. Supreme Court." Bernard E. Witkin, one of California's leading legal analysts, said that despite his frequent disagreements with Tobriner's opinions, the justice is "unquestionably the ablest scholar" on the court On the other hand, UCLA law prof. Gary Schwartz, praising Tobriner's work in tort law as "marvelously rendered," acknowledged that like any justice Tobriner is capable of producing a "dumb" opinion-such as the The Labels to Court Gadfly However, he accumulated enough credits to take the bar examination, which he passed in 1958 on the second try.

He gave up his Oxnard law practice to serve as Reagan's cabinet secretary and executive secretary in 1967 and 1968. Reagan then made him a judge, appointing him to the San Luis Obispo Superior Court in 1969, to the state Court of Appeal in 1971 and to the Supreme Court in 1973. Clark's poor scholastic record became an issue in his 1973 confirmation by the Commission on Judicial Appointments. Chief Justice Donald R. Wright voted against him, saying he was "not qualified by training and experience But he was approved by Atty.

Gen. Evelle J. Younger and Appellate Justice Parker Wood. After joining the court, Clark took research attorneys from the staffs of Wright and the late Justice Raymond Peters. Even some critics who disagree with his opinions find them to" be of high quality, and attribute that to a team effort with his staff.

"The Clark opinions are of the highest quality of craftsmanship," said legal writer Bernard E. Witkin of Berkeley. "His judicial craftsmanship is acceptable," said a California law professor who declined to be named. ''Given the positions he takes, he presents them as well as can be presented. He makes good use of his research attorneys." Another California law professor) who declined to be identified said Clark probably did none of his own, writing.

Clark wrote two opinions he; said, in land-use cases that contained the same issue but were so different that he couldn't possibly have written them." Whether he writes them or not Clark's consistent dissents from decisions-expanding tort liability are "quite interesting" to Gary Schwartz, V'. 'I. jLL. Mathew 0. Tobriner court's majority opinion that a pupil who is a truant from summer school' and gets into an accident may sue the school district for failing to supervise: him.

Tobriner's conservative critics see; him as a doctrinaire liberal, camouflaging his zeal for social engineering behind tortured interpretations of the' law. The San Francisco-born, Harvard- and Stanford-educated Tobriner served as an attorney for the fed-; eral government, a labor lawyer and an appellate court justice before Join-: ina the state Supreme Court in 1962 under appointment by Gov. Edmund: G. (Pat) Brown. Later, one of his: clerks was Edmund G.

(Jerry) Brown the current governor. Is Tobriner too old to continue on the court? Some of his critics say bluntly that his skills are declining and that he should retire. His defenders say he is not too old. And even some less-admiring observers admit that their doubts about Tobriner center more on his alleged protective relationship with Ms. Bird than his own performance as a justice.

From outward indications, at Tobriner seems as vigorous and em-; phatic as ever, whether he is closely questioning an attorney during the court's oral arguments or pausing to, say hello to a visitor to the court William P. Clark Jr. UCLA professor of tort law and a leading authority on the subject. He said Clark exercised greater freedom than other justices and touched on broader issues. "His reflections on the majority opinions are quite useful, but the majority has ignored Clark," Schwartz said.

"Clark is throwing the big left hook or right uppercut, instead of jabbing. Sometimes he misses the mark but comes reasonably close." Fred Okrand, chief counsel for the American Civil Liberties Union in Southern California, and Ephraim Margolin of San Francisco, past president of California Attorneys for Criminal Justice, disagree with just about everything Clark stands for. But they admire his written opinions. Okrand finds the opinions well written, clear and readable, and Clark's scholarship Margolin said Clark "salvaged from the teeth of inevitable mediocrity much more than anybody had a right to expect of him." But a San Francisco attorney in the field' of public-interest law characterizes Clark as "particularly undistinguished. There a certain minimal amount of ability and scholarship re-quired, and I think he's missing the mark," this attorney said.

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Ma Tmmwmt 7M722-21H BTaTaf kit. ISTA Ha Witt 1 IMBAKE: ill TMEAM.T MTI NI 7M72I-3O40 aaatmMamiBNt STAESTI mwumm 2T4 Broaony If BIMau 721-1700 STATIST 2 234 Broadway lAnaFTMKAJ 721-3700 TaflAjal ESCC.S!53 3ME.rendAa. BM Murray 714743-1032 BMTBALLIINI Justice William P. Clark Jr. draws both scornful condemnation and lavish praise from close watchers of the California Supreme Court, but all agree they know exactly where he stands.

Clark, 47, a Republican, is labeled variously as conservative, a rock-ribbed right-winger, a strict constructionist, rigid, a gadfly to the court majority. He is a frequent dissenter, often along with the other appointee of former Gov. Ronald Reagan, Justice Frank K. Richardson. But sometimes not even Richardson agrees with Clark's brand of conservatism, and Clark is left to grumble his dissent alone.

Taking note of Clark's failure to finish law school, one of his sharpest critics a North Hollywood trial lawyer, Joseph G. Hurley said, "He's lived up to his real promise." Hurley, a member of the State Bar board of governors, added that Clark can't be strictly construing the Constitution because "you can only be a strict constructionist if you understand it" On the other hand, archconserva-tives and prosecutors view Clark in an entirely different light George Nicholson, executive director of the California District Attorneys is impressed with Clark's "legal scholarship" and "objectivity." Clark is a fourth-generation Cali-fornian, descendant of a Ventura County ranching and law-enforcement family. His grandfather was sheriff of Ventura County and later U.S. marshal for Southern California. His father was an undersheriff and later police chief of Oxnard.

Clark spent a year in an Augustini-an seminary at a time when he seriously considered entering the priesthood. He also attended Stanford, Santa Clara and Loyola Law School, but failed to get any degrees and flunked out of law school. frst 2T7 MTCHfW WW WY 44Ma S) MATMU DM.Y Woody Allen (23 PLUS ALL-STAI I James Brotln Margot Kidder mi the PLAINTIFF: OUTRIGGER "This is the one, your Honor, This is THE ONE right it- the DEFEK2EKT: KiHl '448 "Enter my plea of insanity, your Honor, rmCRAZYAfTOUFTHKONOf UWAS Jill i SWtllD I mow FlaCalEUI 2iOUVm Suun Anton Mil maUnM. INI 2M0 VH 0 La Vj 111 MIMTUJV 275-00M755-5511 NCIUKMtNX If you have a particular fashion problem or a question, "Clotheslines" may have the answer. See this unusual and helpful fashion feature regularly in HOME.

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